Next up, e-discovery challenges
Amended litigation rules force governments to rethink their electronic document options
- By John Moore
- Aug 13, 2007
Changes in federal rules that govern civil litigation have prompted state and local agencies to explore better methods for producing electronic evidence in the event of a legal action. The revised procedures apply to federal courts, but legal experts say state and local agencies must comply with them if they become litigants in a federal case.
Amendments to the Federal Rules of Civil Procedure that went into effect in December 2006 cast a wide net over the types of data that an organization might be asked to produce in a lawsuit's discovery phase. The new rules use the phrase 'electronically stored information,' a catch-all term that covers word processing documents and materials such as e-mail messages, instant messages and voice mail.
Local government entities, especially school districts, could be asked to comply with the new rules. State governments are immune under the 11th Amendment to the U.S. Constitution from being sued in federal court except in limited circumstances.
Like it or not, to comply with the new rules of e-discovery, agencies must prepare for locating electronic information deemed relevant to a legal case. And agencies that wish to improve their e-discovery capabilities must first take stock of what they hold and where it is located.
Although the amendments don't call for the adoption of specific technologies, automation can make compliance easier. Vendors offer a range of information technology tools that handle e-discovery tasks such as archiving, searching and protecting data. And some state and local governments are using those technologies as they grapple with the rules' e-discovery demands.
The South Carolina Attorney General's Office, for example, is archiving e-mail messages on its Compellent storage-area network. The office has also started to archive instant messages, and it has plans to capture voice-mail messages and store them on the SAN. The office will archives faxes, too.
'The amount of data is just going to be unbelievable,' said John Loy, network engineer for the attorney general's office.New demands
Elsewhere the procedural amendments have prompted in-house attorneys and their IT colleagues to revisit the legal discovery process.
Organizations are starting to evaluate their existing e-discovery processes and identifying areas they can improve 'so when a discovery notice arrives, they are prepared to handle it in accordance with these new guidelines,' said Brian Babineau, senior analyst at the Enterprise Strategy Group.
A technology acquisition might not be the first step for agencies looking to improve their e-discovery procedures. Babineau said the new rules call for organizations to know what electronically stored information they possess, where it resides and how readily accessible it is. He said he doubts many corporate counsels have an adequate grasp of all the electronic information within their domains.
'If they can't identify those information sources, it is very hard to determine how much it is going to cost to collect it and produce it as evidence,' Babineau said. In-house attorneys and IT managers must sit together and discuss matters such as primary storage, secondary storage and backup rotations.
Sue Derison, director of information systems and support for the Forsyth County Schools in Georgia, said such meetings are important to the e-discovery process. 'IT and records and legal have not talked to each other enough to understand what it is they really have to do,' she said.
A good starting point is to adopt an electronic records retention policy, said Cynthia Jackson, an attorney at law firm Baker and McKenzie in Palo Alto, Calif.
An office can establish a retention schedule in several ways. Mandatory statutory retention periods provide a baseline, Jackson said. In California, for example, an employee file must be retained for a minimum of two years after an employee is terminated. But Jackson said organizations might want to go beyond the minimum requirement because of business needs or for statute-of-limitations reasons.
Forsyth County Schools follows a retention schedule published by the Georgia secretary of state, Derison said. The schedule sets minimum requirements for state and local governments.
In the absence of specific requirements for retention, however, an agency must use its own discretion. Case law might not provide much guidance either.
Jackson said she hasn't seen a case that offers clear guidelines about e-mail retention schedules. However, some recent cases provide hints, she said. The 2005 case of Broccoli v. Echostar Communications cited a 21-day retention period as 'risky but arguably defensible' under normal circumstances when a litigation hold is not in effect.
Jackson said the norm has been 90 to 120 days, after which e-mail is subject to deletion.
A retention policy should include a litigation hold process, Jackson added. In a litigation hold, an organization acts to preserve the data relevant to a lawsuit or an anticipated legal action. 'You don't want to figure out how to do it when the need arises,' she said.
Anecdotal evidence suggests that many organizations are still focused on
e-discovery policies and are not yet ready to evaluate automated tools. Heidi Wachs, government relations officer at Educause, informally surveyed 60 participants who attended a recent e-discovery panel discussion. Only a handful of the IT employees queried said they were considering automated tools, and none had them in place yet, Wachs said. Educause is an organization that promotes technology in the education sector.
Wachs said she thinks the limited uptake reflects the newness of the market.
'This is really just beginning to ramp up, and we'll see what happens over the next six months [to] one year,' she said.
Agencies ready for automation will find a number of options for making e-discovery more efficient.
Babineau said organizations can switch tape and optical storage for media that makes data more accessible. Disk storage, such as the inexpensive Serial Advanced Technology Attachment variety, keeps data online and readily available.
Babineau said disk storage can cost $3,000 to $8,000 per terabyte, depending on the functionality an organization requires.
Organizations can incorporate disk storage into an archiving solution, which includes software for managing the migration of files into archival storage. Archiving products might focus on e-mail or more broadly on messaging and electronic documents.
E-discovery tools that let agencies search their data storage are often part of an archiving solution.
C2C's Archive One e-mail archiving product includes Discovery Manager as one of its primary applications. Its features allow administrators to search for pertinent messages and attachments in Exchange servers, according to the company.
Dave Hunt, C2C's chief executive officer, said the amended Federal Rules of Civil Procedure have increased the company's e-discovery sales by about 40 percent. Local governments account for a significant portion of that sales activity, he added.
Hunt estimated that fewer than one in five organizations currently archive e-mail. Other vendors in that niche market include Mimosa Systems, which offers an eDiscovery add-on option for its NearPoint e-mail archiving product for Microsoft Exchange.
In addition, Symantec markets Enterprise Vault, which archives data from file servers, content management systems and e-mail servers. Symantec's optional Discovery Accelerator lets organizations locate specific data and apply litigation holds on e-mail messages or files related to a case.
Organizations can expect to pay $20 to $50 per user per year for an e-mail archiving solution, said David Ferris, president and senior analyst at Ferris Research. E-discovery capabilities, such as full-text indexing, could increase the price, according to some industry executives say.
Data classification products represent another class of tools for e-discovery. Solutions in this category offer content indexing, which makes data storage searchable for discovery purposes. Products such as Arkivio's Auto-stor and CommVault's Simpana work with Fast Search and Transfer's InStream search engine, for example.
Enterprise content management (ECM) software is another option. Forsyth County Schools use Tower Software's TRIM Context ECM suite to capture the e-mail and electronic files of the district's policy-makers, which include the central office staff and school principals and vice principals. TRIM's product offers retention management among its records management features.
Derison said the school district is considering how to handle electronic records management at the teacher level.
Content monitoring and filtering solutions also can help organizations comply with the new litigation rules, said Naomi Fine, president and CEO of Pro-Tec Data, which advises customers on intellectual property protection issues.
She said products from vendors such as Reconnex monitor stored data and data transactions across networks.
E-discovery product options are plentiful, but determining the best fit will depend on an organization's specific situation. 'Each [organization] has to look at what their needs are on a case-by-case basis,' Fine said.
'But if they are litigation-prone, it does make sense to look at some of the packages that are available that help'prepare for e-discovery,' she added.